BEST PRACTICE GUIDE FOR PREPARING REGULATORY IMPACT STATEMENTS

BEST PRACTICE GUIDE FOR PREPARING REGULATORY IMPACT STATEMENTS December 2003

TABLE OF CONTENTS INTRODUCTION... 3 BACKGROUND TO REGULATORY REFORM... 5 National Competition Policy... 5 Business Regulation Review Committee... 5 Mutual recognition... 6 OTHER REASONS FOR REGULATORY REFORM... 7 Market failure... 7 Institutional failure... 7 Regulatory failure... 7 STEPS TO REGULATORY REFORM... 8 WHAT IS A REGULATORY IMPACT STATEMENT (RIS)?... 9 RIS AS A DEVELOPMENTAL TOOL... 10 WHY SHOULD A RIS BE PREPARED?... 11 REQUIREMENTS OF A RIS... 13 Consultation... 13 1. Identify the problem... 15 2. State the objectives of government intervention... 15 3. List the options... 16 4. Identify any Mutual Recognition Issues... 18 5. Undertake impact analysis... 19 6. Make a conclusion and suggest a recommended option... 24 7. Develop guidelines to implement and review the regulation... 24 RIS CHECKLIST... 26 APPENDICES... 27 APPENDIX A: TYPES OF MARKET FAILURE... 28 APPENDIX C: COST BENEFIT ASSESSMENT... 33 APPENDIX D: SUSTAINABILITY... 36 APPENDIX E: COMMONWEALTH ECOLOGICALLY SUSTAINABLE DEVELOPMENT STATEMENT... 38

INTRODUCTION Regulation is any law, government rule or direction that requires certain conduct from individuals, businesses and governments. There is wide community support for Government regulation that protects consumers, public health and safety, the environment and other significant interests. However, many existing laws were designed without explicit consideration of their impact on competition and the resulting costs on businesses, consumers and society. All regulation has an impact on society, both financial and non-financial. Legislation should be viewed as a last resort when all alternative options are ineffective, inefficient and/or have greater impacts on society. However, the option with the least costs may not necessarily be the best option. A Regulatory Impacts Statement (RIS) is a rigorous process for analysing the most feasible (efficient and effective) options available, including the possibility of regulation, to produce the greatest net benefit to society, while simultaneously meeting the needs of government. There are seven principles and features that characterise regulatory policy that conform to best practice standards 1. They are: Employ the minimum regulation necessary to achieve objectives Kept simple to avoid unnecessary restrictions Targeted at the problem to achieve the objectives Not imposing an unnecessary burden on those affected Not be unduly prescriptive Performance and outcomes focused General rather than overly specific Be accessible, transparent and accountable Easy to understand Fairly and consistently enforced Some flexibility for dealing with special circumstances Open to appeal and review Integrated and consistent with other laws Addresses a problem not addressed by other regulations Recognises existing regulations and international obligations Communicated effectively Written in plain language Clear and concise Mindful of the compliance burden imposed Proportionate to the problem Set at a level that avoids unnecessary costs 1 Source: Productivity Commission 2002, Regulation and its Review 2001 02, Annual Report Series, Productivity Commission, Canberra Any questions? Contact the Microeconomic Reform Section on 6207 3949 3

Enforceable Provides the minimum incentives needed for reasonable compliance Able to be monitored and policed effectively Given the need for appropriate and effective regulation that meet the needs of government and minimises the costs on business and society, the Government requires that each regulatory proposal be accompanied by a thorough assessment of the risks, costs and benefits to government, business and society associated with the proposal. However, as these risks, costs and benefits change over time, it is also necessary to undertake regular reviews to ensure that the regulation remains appropriate. The RIS should be prepared once an administrative decision is made that regulation may be necessary, but before a policy decision is made on the nature of the regulation needed. Undertaking the RIS process minimises the likelihood of unnecessary regulation and maximises the potential for achieving the regulatory objective and delivering benefits to the community. The objective of the RIS process is to ensure that if regulation is necessary it has the least possible regulatory costs and does not unnecessarily impede competition. The RIS should include a clear statement of the objectives of the regulatory proposal, the best means of achieving that objective, and its likely effects on government, business and society. This means determining whether there are any alternatives to regulatory proposals and, through a process that includes an analysis of the quantitative and qualitative costs and benefits, determine the course of action that maximises the benefits to the community as a whole. Undertaking a RIS will help reduce unnecessary regulation on business. The RIS process seeks to ensure that the regulatory measure has the minimum possible impact on business while still fully achieving its objective. Agencies must address the business impact as part of the RIS process. The objective of this manual is to assist ACT Government agencies to present a case for their regulatory proposal. Background information is provided, explaining the impetus for regulatory reform. The section titled Preparing a RIS contains a step-by-step guide to ensuring that agencies undertake a thorough assessment of the proposal, and is the focus of this guide 4 Any questions? Contact the Economics Branch on 6207 3949

BACKGROUND TO REGULATORY REFORM In the ACT, there are three main policy requirements, driving regulatory reform. These are: National Competition Policy (NCP); The Government s acceptance of the recommendations in the Business Regulation Review Committee s Review of ACT Business Regulation Report; and Mutual recognition. National Competition Policy Under the National Competition Policy Agreements, all governments have an obligation to ensure that legislation is not anti-competitive. The principle articulated in the 1993 Hilmer Report places the onus of proof on governments to demonstrate a public interest case for the enactment or retention of statutory restrictions on competition. Hence, under clause 5 of the Competition Principles Agreement of the National Competition Policy (NCP), each government undertook to review and, where appropriate, reform all existing regulation that restricted competition by the year 2000. COAG later agreed in November 2000 to extend the deadline to June 2003. The guiding principle is that restrictions be removed unless: the benefits of the restrictions to the community outweigh the costs; and the objectives of the legislation can only be achieved by restricting competition. Fundamental to regulatory best practice, these principles are also required to be incorporated in regulatory impact statements for proposed new or amended legislative proposals. Business Regulation Review Committee In March 2002 the Business Regulation Review Committee was appointed to review the ACT business regulatory environment. The Committee examined the progress made to improving the regulatory environment since the 1995 Red Tape Task Force Report and subsequent National Competition Policy-related reviews of business regulation. The Committee noted the particular contribution that Regulatory Impact Statements had made in improving the quality of legislative and policy proposals brought forward by departments and agencies for Government and subsequently Assembly consideration. To this end, it formally recommended that this Guide be updated and then re-issued to all agencies The Government accepted this recommendation in its formal response to the Committee s report. The report is available on-line at: www.treasury.act.gov.au/documents/brrtext.pdf and the full text of the Government s response to the report is at: http://www.treasury.act.gov.au/competition/pol.html Any questions? Contact the Microeconomic Reform Section on 6207 3949 5

Mutual recognition Mutual recognition reduces compliance costs to business and improves their efficiency and competitiveness when conducting transaction across State and Territory borders. The increasing emphasis given to cross-jurisdictional policy and legislative development means that regulations are no longer developed in isolation. Consideration must be given to regulatory regimes operating in other jurisdictions to ensure that consistency is achieved wherever possible, particularly where common enforcement procedures or harmonisation of regulatory regimes will have the positive effect of reducing compliance costs to businesses operating across State and Territory borders. Commonwealth, State and Territory governments have passed mutual recognition legislation to ensure that goods and occupations that comply with the regulations in one jurisdiction are deemed to comply with regulations in all other jurisdictions. The consideration of cross-jurisdictional identification of mutual recognition issues forms one requirement of a RIS, and is examined further in the step-by-step section of this Guide. Relevant agreements are the: Mutual Recognition Agreement (MRA), which came into operation in 1993 between all Australian States and Territories; and Trans-Tasman Mutual Recognition Arrangement (TTMRA), which commenced in 1998 between Australia and New Zealand. 6 Any questions? Contact the Economics Branch on 6207 3949

OTHER REASONS FOR REGULATORY REFORM In addition to policy requirements mentioned above, there are also a number of economic justifications for regulatory reform and government intervention. These include: market failure; institutional failure; and regulatory failure. Market failure While open and unrestricted competition in markets is generally regarded as the most efficient mechanism for allocating resources, the nature of some goods and services prevents markets from attaining optimal economic and social outcomes for the community. The resulting market failure is sufficient justification for government intervention. Market failure often arises in the presence of one or more of the following: public goods; externalities; natural monopolies; and information asymmetries. The table at Appendix: Types Of Market Failure gives a brief description of these market failures and reasons why government intervention may be needed. Institutional failure Institutional failure arises when the processes and structures relating to the enforcement of laws do no operate efficiently or effectively. This type of failure is demonstrated particularly through: obstacles experienced by consumers relying on the court system; inadequate and uncoordinated enforcement effort facilitating unfair competition within industry; lack of clarity and consistency in agency roles and responsibilities, resulting in confusion for industry and consumers; overlap and duplication of agency responsibility with no co-ordination between agencies; and lack of resources or inadequate co-ordination of enforcement in a manner that best makes use of the available resources. Regulatory failure Regulatory failure results from problems associated with enforcement and legal frameworks. This type of failure can be attributed to: the regulations not being effective in addressing the problem they were seeking to address; inadequate resources for enforcement; or a lack of consistency and equity in the regulation. Effective regulatory regimes employ aspects of both cooperative and controlling approaches. Any questions? Contact the Microeconomic Reform Section on 6207 3949 7

STEPS TO REGULATORY REFORM The diagram below illustrates the regulatory reform process. Note that consultation with both the Department of Treasury and stakeholders is an integral part of the process and is ideally undertaken at every stage. YES If a problem has been identified, has a Regulatory Impact Statement been developed? YES Does it meet requirements? NO Consult with the Microeconomic Reform Section within the Department of Treasury Undertake a Regulatory Impact Statement in consultation with stakeholders Clarify market failure or opportunity State objectives of government intervention List options for achieving objectives Identify mutual recognition issues Undertake impact analysis of most viable options Suggest a recommended option Develop implementation and review strategy After comment received from the Microeconomic Reform Section, decide on the preferred option If the Microeconomic Reform Section does not agree with the preferred option then include reference to comments in policy paper Begin Cabinet process Prepare policy paper discussing preferred option including approval to draft legislation if appropriate Circulate policy paper to agencies 8 Any questions? Contact the Economics Branch on 6207 3949

WHAT IS A REGULATORY IMPACT STATEMENT (RIS)? A RIS is an analytical tool that guides policy development and decision-making, prepared by the department, agency or statutory authority responsible for a regulatory proposal. It describes the issue that has given rise to a need for regulation and compares various possible options for dealing with that issue. An assessment of the costs and benefits of each option is included followed by a recommendation supporting the most effective and efficient option. The objective of the RIS is to assist decision-making by presenting the information in a clear, structured and logical framework that will, after the decision is made, provide evidence of a sound approach underlying the chosen regulatory model. To ensure that the RIS meets these objectives, it must be given considerable thought and time. It is a document that should be prepared in consultation with stakeholders at every stage of its development. Hence, it is a document that cannot be left to the last minute to be prepared. It must be prepared once a decision is made that regulation may be necessary, but before a decision is made as to what form regulation may take. A RIS, when developed in consultation with stakeholders, should identify: 1. the problem or issues which give rise to the need for action; 2. the desired objective(s); 3. all options (regulatory and/or non-regulatory) that may present viable means for achieving the desired objective(s); 4. any mutual recognition issues; 5. a cost-benefit analysis of the impact of each option on potentially-affected stakeholders including, consumers, business, government, the community, the region and the environment; 6. a recommended option; and 7. a strategy to implement and review the preferred option. Consultation with the Microeconomic Reform Section within the Department of Treasury at the beginning of the RIS process will ensure that guidance and advice can be provided to enable the preparation of a sound regulatory impact statement. Any questions? Contact the Microeconomic Reform Section on 6207 3949 9

RIS AS A DEVELOPMENTAL TOOL Recognise and clarify problem facing Government RIS Process Identify options for solving problem Best Solution; Most effective in terms of cost and positive impacts derived from Public Benefits Test Is Legislation necessary? Yes No Legislative Process Policy Development 10 Any questions? Contact the Economics Branch on 6207 3949

WHY SHOULD A RIS BE PREPARED? All regulation has an impact on society, both financial and non-financial. Legislation should be viewed as a last resort when all alternative options are ineffective, inefficient and/or have greater impacts on society. However, the option with the least costs may not necessarily be the best option. Occasionally there are policy options with greater benefits to society than legislation that have not been explored. A RIS is a rigorous process for analysing the most feasible (efficient and effective) options available, including the possibility of regulation, to produce the greatest net benefit to society, while meeting the needs of government. The RIS should be prepared once an administrative decision is made that regulation may be necessary, but before a policy decision is made on the nature of the regulation needed. Undertaking the RIS process minimises the likelihood of unnecessary regulation and maximises the potential for delivering benefits to the community. In addition to its contribution to better policy-making, there are also executive, statutory and intergovernmental requirements to undertake a RIS, specifically: ACT Government Cabinet Handbook (April 2002); Legislation Act 2001; and National Competition Policy. Cabinet Handbook Chapter 7 of the ACT Government Cabinet Handbook prescribes that where any new or amended legislation or government direction is proposed, a RIS must be completed as part of the policy development process. Cabinet submissions must address the issues raised by this process and the RIS must accompany the submission. Other departments and agencies are then able to assess the costs and benefits of the proposal, and provide further comment or advice on matters that may not have been considered. Legislation Act 2001 Sections 34 38 of the Legislation Act 2001 ( the Act ) state that for a proposed subordinate law (such as a regulation) or disallowable instrument that is likely to impose appreciable costs on the community, or a part of the community, then a RIS must be prepared. Appreciable cost is not defined in the Act on the basis that any definition cannot be sufficiently broad to capture all concepts of cost. Rather, in attempting to classify and quantify the effects of their proposals, agency staff are encouraged to think beyond the usual notions of costs as financial measures and consider more intangible or imprecise variables such as public health, environment and time. Appendix C: Cost-Benefit Assessment provides further discussion on how costs can be classified and quantified and the Microeconomic Reform Section can provide additional guidance and advice. Any questions? Contact the Microeconomic Reform Section on 6207 3949 11

Section 36 of the Act also specifies when the preparation of a RIS is not required. For example, proposed ACT law may arise from a decision to adopt an existing Australian Standard. In this instance, if an assessment of the benefits and costs has already been made in another jurisdiction and the assessment is relevant to the ACT, then a RIS is unnecessary. National Competition Policy Regulatory proposals also need to consider their competition policy implications. In 1995 all Australian governments agreed to a package of microeconomic reform initiatives collectively known as National Competition Policy (NCP). Under three intergovernmental agreements which comprise NCP, the Commonwealth agreed to make ongoing national competition payments to each State and Territory, in return for them undertaking a series of reforms. NCP requires that new or amended legislation should not restrict competition unless it can be demonstrated that: the benefits of the restriction to the community as a whole outweigh the costs (often referred to as the public benefit test) the objectives of the legislation can only be achieved by restricting competition. Proposals for new legislation that restricts competition need to be accompanied by evidence in the form of a RIS that the legislation is consistent with the above criteria. Failure to comply with this requirement means the ACT is not meeting its obligations under the Agreement it co-signed, and may jeopardise its full competition policy payment entitlement. The Microeconomic Reform Section has responsibility for carriage of National Competition Policy in the ACT, including the annual report to the National Competition Council on the ACT Government s progress in implementing the NCP Agreements. The Section, therefore, has a primary role in supporting departments and agencies when they are preparing a RIS, to ensure the ACT s obligations are met. The Review of ACT Business Regulation, undertaken in 2002, identified a large number of non-legislative based codes of practice, guidelines, protocols and standards that agencies had attempted to enforce as if they had statutory backing. It was subsequently recommended to, and accepted by, Government that these nonlegislative regulations be systematically reviewed to either formalise their status under legislation, discontinue their use or allow them to continue to operate as purely voluntary arrangements with no government enforcement activity. Non-legislative regimes are classified as self-regulatory or quasi-regulatory and do not have the coercive power to force compliance that more formal regimes possess. In seeking to affect the behaviour of individuals or groups, however, a RIS should be undertaken to determine the most effective non-legislative model to achieve compliance. 12 Any questions? Contact the Economics Branch on 6207 3949

REQUIREMENTS OF A RIS The diagram below illustrates the minimum requirements of a RIS and provides a guide to the main headings to be used to structure the document. Each heading is expanded upon in the following chapter. 1. Identify problem 2. State the objectives of government intervention 3. List the options for achieving objectives 4. Identify any Mutual Recognition Issues In consultation with stakeholders 5. Undertake impact analysis 6. Make a conclusion and suggest a recommended option 7. Develop guidelines to implement and review the regulation Consultation Any questions? Contact the Microeconomic Reform Section on 6207 3949 13

Who are the potentially affected groups or individuals of the proposals? What are the views of the main affected parties? Where consultation was limited or not undertaken what were the reasons? Consultation is a vital part of the RIS process. By discussing a regulatory proposal with all the affected groups, any recommendations concluded by the RIS will be more appropriate and thorough. A consultation statement should be included in the RIS and provide details of the extent of consultation and the main views expressed. The statement should also note the extent of intergovernmental consultation. Consultation should be within government and, unless the need for action is urgent or the subject is particularly sensitive, also with outside interests. Potential stakeholders could include: consumer groups service providers peak representative organisations community support groups community members who may be affected by, or interested in the outcome of the decision; and other government agencies. The first point of consultation should be with the Microeconomic Reform Section. The Section can assist agencies with procedures, including the provision of advice on different regulatory/control approaches, best practice on regulatory reform and facilitating RIS training for staff. Advice can also be provided on evaluating the extent to which existing regulations are meeting the regulatory reform objectives of the government. Consultation with the Section during the development of the RIS will allow any potential problems to be identified and addressed at an early stage. This will facilitate the RIS passage when legislation is circulated for department and agency comment. The Community Policy Unit (CPU) within the Office of Multicultural and Community Affairs, Chief Minister s Department can assist agencies to plan more effective community consultations. The CPU can offer suggestions and ideas to draw up a consultation process that is appropriate for the particular project. A manual prepared by the CPU to assist in the planning and undertaking of consultation is available at: http://www.cmd.act.gov.au/community/publications.htm Further information regarding consultation strategies can be obtained from the CPU on 6205 0404. 14 Any questions? Contact the Economics Branch on 6207 3949

1. Identify the problem What is the problem being addressed? Why is government action needed to correct the problem? What are the potential risks? This section of the RIS should clearly specify the problem that needs to be addressed to ensure that the appropriate action is taken. When identifying the nature and magnitude of the problem, both empirical evidence and perceptions should be considered. As no government action is without direct cost or indirect costs through shifting resources, the onus is on the department or agency proposing the action to justify the need for government intervention. Economic theory suggests that government involvement is needed in cases of market failure, institutional failure or regulatory failure. A brief explanation of each failure is provided at Appendix A: Types Of Market Failure. This section of the RIS should specify the precise nature of the failure. Consultation with potentially affected stakeholders should begin at this stage. 2. State the objectives of government intervention What are the objectives of government action? Is there a regulation/policy currently in place? Who administers it? This section of the RIS needs to specify the outcomes, goals or targets sought in relation to the identified problem. The objective must be clear, concise and as specific as possible. It should be specified broadly enough to allow consideration of all relevant alternative solutions but not broad or general enough that the range of alternatives becomes too large to assess or the extent to which the objective has been met becomes too hard to establish. The objective should allow for an examination of alternative solutions to the underlying problem. Care should be taken to ensure the objective is not specified in such a way that it pre-justifies a preferred solution. A common error is to confuse the desired final outcome of the proposal with the means of obtaining it. Accordingly, be mindful of confusing ends with means. Details of existing regulations should also be identified, along with relevant government policy. Any questions? Contact the Microeconomic Reform Section on 6207 3949 15

3. List the options What are the options? Which is the most appropriate regulatory model? Which can be eliminated as not feasible? The RIS should assess the relative merits of alternative non-regulatory and regulatory measures for achieving the stated objectives. Following is a non-exhaustive list of non-regulatory and regulatory options. Further information on each option is given at Appendix B: Non-regulatory And Regulatory Options. Non-regulatory options Do nothing Information disclosure Economic incentives Tradeable property rights Risk-based insurance or risk pricing Persuasion Voluntary agreements Regulatory options Self regulation Quasi-regulation Co-regulation Explicit government regulation The following checklist provides guidance to help determine which regulatory forms are worth considering. Checklist for the assessment of regulatory forms for their suitability 1. Self-regulation should be considered where: there is no strong public interest concern, in particular, no major public health and safety concern; the problem is a low risk event, of low impact/significance; and the problem can be fixed by the market itself. For example, there may be an incentive for individuals and groups to develop and comply with selfregulatory arrangements (industry survival, market advantage). The likelihood of self-regulatory industry schemes being successful is increased if there is: adequate coverage of industry concerned; a viable industry association; a cohesive industry with like minded/motivated participants committed to achieve the goals; evidence that voluntary participation can work effective sanctions and incentives can be applied, with low scope for the benefits being shared by non-participants; and a cost advantage from tailor-made solutions and less formal mechanisms such as access to quick complaints handling and redress mechanisms. 2. Quasi-regulation should be considered where: 16 Any questions? Contact the Economics Branch on 6207 3949

there is a public interest in some government involvement in regulatory arrangements and the issue is unlikely to be addressed by self-regulation; there is a need for an urgent, interim response to a problem in the short term, while a long-term regulatory solution is being developed; government is not convinced of the need to develop or mandate a code for the whole industry; there are cost advantages from flexible, tailor made solutions and less formal mechanisms such as access to a speedy, low cost complaints handling and redress mechanisms; and there are advantages in the government engaging in a collaborative approach with industry, with industry having substantial ownership of the scheme. For this to be successful, there needs to be: a specific industry solution rather than regulation of general application; a cohesive industry with like minded participants, motivated to achieve the goals; a viable industry association with the resources necessary to develop and/or enforce the scheme; effective sanctions or incentives to achieve the required level of compliance, with low scope for benefits being shared by nonparticipants; and effective external pressure from industry itself (survival factors), or threat of consumer or government action. 3. Explicit government regulation should be considered where: the problem is high risk, of high impact/significance, for example a major public health and safety issue; the government requires the certainty provided by legal sanctions; universal application is required (or at least where the coverage of an entire industry sector or more than one industry sector is judged as necessary); there is a systemic compliance problem with a history of intractable disputes and repeated or flagrant breaches of fair trading principles and no possibility of effective sanctions being applied; and existing industry bodies lack adequate coverage of industry participants, are inadequately resourced or do not have a strong regulatory commitment. Sometimes it is too costly and unreasonable to assess every possible alternative solution. Accordingly, it may be necessary to consider in detail only the most feasible options, however, the reasons for rejecting options without detailed analysis should be clearly stated. Eliminating options Initially, a broad range of options should be considered, including forms of quasiregulation and self-regulation. Regulation through legislation may not be the best solution and others should be considered. Any questions? Contact the Microeconomic Reform Section on 6207 3949 17

By focusing on the options that are most effective in achieving the stated objectives, the range of the options being considered can be narrowed. This can be achieved by examining the broad constraints under which each option operates. Possible constraints may be: technological - that which is possible within present and predicted levels of technology; legal limitations on a department or on an agency s actions; or distributional - the government s objectives and the distribution of the effects of the proposal amongst the different segments of the community. If it is uncertain whether an option should be eliminated, it should remain as a possible option and assessed with the other options in step 5 of the RIS, Undertaking Impact Analysis. 4. Identify any Mutual Recognition Issues Is there any legislation prepared by other jurisdictions that may meet ACT requirements? Is the intended regulation overridden by or permanently exempt from existing mutual recognition agreements? Mutual recognition agreements allow goods and occupational qualifications that are produced or registered in one state or territory to be accepted in other states and territories. For example, a practitioner registered in one jurisdiction is entitled to automatic registration for an equivalent occupation in a second jurisdiction. As such, efficiency gains that allow regulatory consistency between jurisdictions can aid business and consumers. Relevant agreements are the Mutual Recognition Agreement (MRA) between all Australian States and Territories and the Trans- Tasman Mutual Recognition Arrangement (TTMRA) between Australia and New Zealand. Laws implementing mutual recognition may also override other laws such as those that regulate the manufacture or sale of goods. Examples of laws overridden include requirements relating to production standards, packaging and labelling, and conformance assessment requirements relating to the sale or manufacture of goods. Hence, before preparing regulatory measures, agencies should examine legislation prepared by other jurisdictions that may meet ACT requirements. In relation to the development and adoption of national codes/standards, a national RIS process, usually overseen by the relevant Ministerial Council is required. Preparation of a RIS at the national level may obviate the need to prepare a RIS at the State/Territory level. Agencies should contact the MRS to discuss any regulatory proposals that are being contemplated at a national level. 18 Any questions? Contact the Economics Branch on 6207 3949

5. Undertake impact analysis Best Practice Guide for Preparing Regulatory Impact Statements Who is affected by the problem and who is likely to be affected by the proposed solution(s)? What are the quantified costs and benefits imposed on the affected parties? What are the assumptions and data sources used in making these assessments? What are the outcomes for each option? The principal requirement of this section of the RIS is that a comprehensive assessment of each option s expected impact is prepared. In general, the degree of detail and depth of analysis should be commensurate with the magnitude of the problem and with the size of the potential impact of the regulatory proposals. Qualitative and quantitative evidence should be utilised to adequately assess the costs and benefits of each option in order to determine the option that most efficiently and effectively addresses the problem. As a minimum, a qualitative assessment of all the expected effects of a proposed option is required. In addition, quantitative data can provide useful information and help demonstrate the need for regulatory action. A more detailed and comprehensive quantitative analysis is necessary if: options appear to result in similar levels of benefits and costs, so that no one proposed solution is clearly superior to other alternatives; there is a possibility that an option could impose a net cost on the community; or the proposed solution is expected to have a large or far reaching impact on the economy. Who is affected? Input from stakeholders is fundamental in identifying the qualitative and quantitative benefits and costs of a regulatory proposal. Accordingly, those affected by the problem and those who will be likely affected by the solution should be identified early in the reform process. The stakeholders should be listed in this section and used to categorise the costs and benefits accordingly. Stakeholders should be classified in terms of how they are affected by each regulatory option. Classifications should be as specific as possible to ensure accurate identification of groups and subsequent assessment of costs and benefits, e.g. business can be classified in terms of being large, medium or small. Identifying and assessing the costs and benefits This section of the impact analysis will involve the most effort and consultation with the stakeholders. It will involve identifying the costs and benefits, or the advantages and disadvantages of the regulatory and non-regulatory proposals and then quantifying their impact. A benefit is described as the positive effect or the advantages of a proposal, and may include any item that makes any person better off regardless of whether it can be quantified. Any questions? Contact the Microeconomic Reform Section on 6207 3949 19

A cost is any item that makes someone worse off or that reduces a person s sense of well-being. To facilitate the process, benefits and costs can be further classified as allocative or distributional, direct or indirect and tangible or intangible. Appendix C: Cost- Benefit Assessment provides a brief description of each of these classifications. The Competition Principles Agreement (CPA) provides a list of indicative factors a government could consider in evaluating the benefits and costs of particular actions, while not excluding consideration of any other matters in assessing the public interest. Some of the factors to consider include: 20 Without limiting the matters that may be taken into account, where this Agreement calls: a) for the benefits of a particular policy or course of action to be balanced against the costs of the policy or course of action; or b) for the merits or appropriateness of a particular policy or course of action to be determined; or c) for an assessment of the most effective means of achieving a policy objective; d) government legislation and policies relating to ecologically sustainable development (See Appendix D: Sustainability and Appendix E: Commonwealth Ecologically Sustainable Development Statement); e) social welfare and equity considerations, including community service obligations; f) government legislation and policies relating to matters such as occupational health and safety, industrial relations and access and equity; g) economic and regional development, including employment and investment growth; h) the interest of consumers generally or of a class of consumers; i) the competitiveness of Australian businesses; and j) the efficient allocation of resources. The CPA states that these factors (and any others) may be considered in balancing the benefits of a particular policy or course of action against its costs, to determine the appropriateness or most effective means of achieving a policy objective. The critical issue, however, is the weighting that needs to be applied to the factors listed above, and the extent to which the interests of the whole community should be traded off against the interests of particular groups. Hence, weighting benefits and costs involves difficult judgements, which can only be assessed on a case-bycase basis. Appendix C: Cost-Benefit Assessment also provides guidance on possible costbenefit assessment techniques, such as Cost-Benefit Analysis, quantifying benefits and costs and points to consider when undertaking such analysis. The text below provides possible costs and benefits for the sectors of government, business and the community. These costs and benefits are not exhaustive and will not include costs or benefits unique to specific situations. Also note that the impact analysis should not only consider the direct costs and benefits, but should also include the costs of implementation and review. Any questions? Contact the Economics Branch on 6207 3949

Government When considering the costs and benefits to government of a particular proposal it is also necessary to consider all the incidental costs and benefits associated with the development, implementation and review of regulation. As no government action is without cost, the onus is on the department or agency proposing the action to justify the need for government intervention. Examples of costs and benefits SECTOR COSTS BENEFITS Government administration, resource allocation, training, printing and public education the actual costs involved in consultation and cost/benefit analysis in the process of establishing the legislative regime inspection/compliance enforcement or prosecution review of the regulation protect public interest issues provide community service obligations influence market behaviour e.g. increases competitiveness in the marketplace receive revenue Business The RIS process is particularly suited to identifying the regulatory impacts of proposals on business. In its report to the government in September 2002, the Business Regulation Review Committee noted that, the RIS process provides an effective means of reducing unnecessary regulation and improving the quality and effectiveness of legislation that is enacted. Accordingly, the impact of a regulation on business should be identified and rigorously costed. Compliance and paper burden costs are the additional (incremental) costs incurred by businesses when satisfying regulations. Compliance costs can usually be divided into two broad categories: one-off costs, such as acquiring sufficient knowledge to meet their regulatory obligations, purchasing/leasing additional equipment and buildings, legal/consultancy fees and training expenses; and recurring and ongoing costs, such as staff costs or time, consumable materials, inspection fees/licences and enforcement costs (ie costs arising from need to devote additional time and resources to satisfying regulatory requirements). RIS should include estimates of both one-off and ongoing compliance costs. Where detailed information about compliance costs is not available, such costs should be estimated by developing plausible assumptions and using available data on business costs and on the number of businesses likely to be affected by a regulatory proposal. To estimate the incremental change in compliance costs resulting from a proposed regulatory change, it may be appropriate to consider how the change impacts on Any questions? Contact the Microeconomic Reform Section on 6207 3949 21

particular types of business (for example, small, medium and large, rural or urban business etc). For each type of business considered, estimate the incremental change in compliance costs for a typical business in each type or class of business; then multiply this estimate by the number of businesses of that type/class. This will provide an estimate of total additional compliance costs incurred by business in complying with a new or amended regulation. Undertaking this analysis will also provide information in the appropriate format for annual reporting by agencies on the costs and benefits of regulatory reform another recommendation from the Business Regulation Review Committee accepted by government. The consideration of compliance costs in a RIS is very important because such costs can: distort economic decision making away from the most efficient and effective use of resources; divert resources into non-productive uses; diminish the viability of business; and be passed on to consumers through higher prices, with possible distributional and equity consequences. Where possible, ways to reduce or minimise such compliance costs should be discussed. In addition, any trade-offs between compliance costs and administrative costs of government, such as the costs of implementing and monitoring regulations, should also be explicitly identified. Again, early consultation with business will readily allow identification and quantification of the costs and benefits of regulatory proposals. Examples of costs and benefits SECTOR COSTS BENEFITS Business administration such as record keeping and obtaining advice on new regulation from professionals compliance such as health and safety production/distribution/marketing such as new equipment licence costs stifling of innovation adverse impact on the ability to export placing a higher burden on local industry compared to outside industry training requirements reduce unsafe or unethical behaviour clarify operating conditions protect ethical operators maintain standards Information on compliance costs for business can also be presented in a tabular form, as illustrated below. 22 Any questions? Contact the Economics Branch on 6207 3949

Estimating the compliance cost of regulation Best Practice Guide for Preparing Regulatory Impact Statements Type of compliance costs Small business Medium business Large business Total One off (non recurring) costs Ongoing (recurring costs) Total Community As for the other stakeholder groups, it is also useful to consider the impact of a regulatory proposal across a number of sub groups according to age, geographical location etc. Examples of costs and benefits SECTOR COSTS BENEFITS Community higher prices for goods or services licence costs restricted purchasing opportunities and/or reduced choice compliance costs consumer protection of goods and services maintenance of standards in goods and services protection of safety, health, the environment and other public interest issues disclosure of information Summary Once the impact analysis has been completed the information should be summarised, listing each alternative proposal and the main results. The following table is an appropriate format to present the information but should be modified to include issues unique to specific situations. Sector Option 1 Option 2 Community Expected Costs Expected Benefits Net Benefit/ (Cost) Expected Costs Expected Benefits Net Benefit/ (Cost) Business Government Any questions? Contact the Microeconomic Reform Section on 6207 3949 23

6. Make a conclusion and suggest a recommended option What is the preferred option? Why was this option preferred and the others rejected? This section of the RIS draws together the key outcomes. It should include a brief summary of each option and state the reasons for the preferred option and the reasons for rejecting the other options. It can also be useful to show the sensitivity of the results to any assumptions that have been made. Finally a recommendation should be made stating the option that provides the greatest net benefit across all stakeholder groups, or the option that yields the greatest net public benefit. 7. Develop guidelines to implement and review the regulation How will the preferred option be implemented? Is the preferred option clear, consistent, easily understood and accessible to users? What is the impact on business and how will compliance and the paper burden costs be minimised? How and when will the effectiveness of the preferred option be assessed? If the option takes the form of regulation, is there a built in provision to review or revoke the regulation after it has been in place for a certain length of time? After establishing the best option that will address the problem, the final stage in the RIS process is to state how the option will be implemented and enforced, and how it will be reviewed after a period of implementation. Note, however, that these issues should be considered when identifying and quantifying the costs and benefits of the proposals and incorporated in the impact analysis. The following issues should be addressed when deciding how to implement the option: administrative issues such as the body responsible for administering the regulatory policy; extra activities that regulated parties will have to undertake such as maintaining additional information; the departments and agencies that will have a role in implementing the proposal; any duplication of resources involved in administering the new proposal; and plans for the enforcement and monitoring of the proposal. 24 Any questions? Contact the Economics Branch on 6207 3949

This section should specify how the preferred option will be monitored and assessed against achieving its objectives. When the proposal has been in place for a reasonable length of time, the following questions should be asked: Is there still a problem? Are the objectives being met? Were the impacts as anticipated? Is action still required? Could more appropriate action be taken, i.e. implementing a modified or different regulatory model? Measures for an ongoing review could include: establishing a complaints/feedback mechanism; establishing arrangements for ongoing consultation; provision for regular reporting; and inserting a review or sunset clause in the legislation. A sunset clause in legislation is a date at which the legislation expires. Prior to expiry the regulation should be reviewed and re-enacted if appropriate. This clause is particularly suited to regulation implemented to address an emergency. Any questions? Contact the Microeconomic Reform Section on 6207 3949 25

RIS CHECKLIST Step Description Task Completed Y/N At every stage of the RIS Consultation Find out the views of the main affected parties Give reasons why, if relevant, full consultation is not appropriate Has a consultation statement been completed? 1 Problem Identify the problem Explain the need for government intervention 2 Objectives of government intervention Define the objectives of government intervention Identify current regulation/policy 3 Options Describe the options to be explored Identify the broad constraints that may eliminate some options 4 Mutual recognition issues What are the positive and negative cross-border effects? Is it possible to harmonise regulatory regimes among States/Territories? 5 Impact analysis Identify the affected parties Identify and categorise the expected impacts on these groups for each option Quantify these effects where possible Identify the assumptions and undertake sensitivity analysis if appropriate Summarise the outcomes for each option and explain the reasons for the preferred option 6 Conclusion and recommendation 7 Implementation and review Provide a brief summary of the assessment of each option Reiterate the reasons underlying the preferred option Outline the assumptions that the conclusion rests upon Describe how the preferred option will be implemented Quantify the impact on all types of business Describe the measures that will be taken to monitor and review the regulation 26 Any questions? Contact the Economics Branch on 6207 3949

APPENDICES APPENDIX A: TYPES OF MARKET FAILURE APPENDIX B: NON-REGULATORY AND REGULATORY OPTIONS APPENDIX C: COST BENEFIT ASSESSMENT APPENDIX D: SUSTAINABILITY APPENDIX E: COMMONWEALTH ECOLOGICALLY SUSTAINABLE DEVELOPMENT STATEMENT Any questions? Contact the Microeconomic Reform Section on 6207 3949 27

APPENDIX A: TYPES OF MARKET FAILURE Public goods Externalities Natural monopolies Information asymmetries Market failure Public goods are typically ones where once the good or service is produced, the supplier cannot exclude others from enjoying the benefits of the good, e.g. street lighting, and any number of persons may enjoy the benefits of the good without reducing the level of benefits for others e.g. a free to air radio program. Externalities arise where an activity, service or good confers spillover benefits or imposes spillover costs on third parties. As the spillover is not borne by the originator, there is little incentive to engage in the activity in the case of a positive externality or decrease the activity in the case of a negative externality. There may be an abuse of market power on the part of an individual firm or an industry group or sector where there are gains to scale, such that there is the potential for the output price to be minimised with only one business. In some markets, sellers have more information about quality than buyers e.g. used cars. This may result in lower quality products driving higher quality products out of the market or consumers being unable to make rational, informed decisions about price and quality. Need for government intervention To ensure the provision of such goods the government may: directly provide the good - as is the case with defence and community parks; or create private property rights such as copyright to provide the private sector an incentive to provide the good. The government can reduce the incidence of spillover costs by: prohibiting the activity outright e.g. drink driving imposing a tax or charge on the activity imposing minimum safety standards creating tradeable property rights such as the right to develop land within overall zoning constraints. The government can provide incentives to continue activities with spillover benefits by: subsidising the activity e.g. R&D tax concessions requiring the activity to be carried out by law creating private property rights. The government can prevent abuse of that power by: imposing price controls creating third party rights to negotiate access to natural monopoly facilities where such access is required to permit competition in upstream of downstream markets. However, the availability of substitutes in the market may limit the economic inefficiencies associated with natural monopoly. Note that the need for government intervention may be lessened as the existence and extent of natural monopoly changes with changes in production technology or demand. Governments can ensure that consumers are better informed about the quality of products by: licensing and thus facilitating the signalling of appropriately qualified suppliers; imposing minimum standards on production; imposing minimum information requirements; or encouraging appropriate industry selfregulation. 28 Any questions? Contact the Economics Branch on 6207 3949